This week, the United States’ Privacy and Civil Liberties Oversight Board (PCLOB) held its first-ever public hearing with all five of its members present. That hearing, which was open to the public and was carried on C-SPAN, took hours of testimony from various government and intelligence officials. A transcript (PDF) of that hearing was made available on Wednesday.

PCLOB is an interesting group: it was recommended by the 9/11 Commission and its existence was signed into law in 2007.

Its official mandate?

To review and analyze actions the executive branch takes to protect the Nation from terrorism, ensuring the need for such actions is balanced with the need to protect privacy and civil liberties.

To ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.

It conducted business with four part-time members for years, but it did not hold any public meetings until 2012. Its chairman, David Medine, was not appointed and confirmed until May 2013—and only he has the power to appoint staff. So now, with five full-time staff in addition to the original five members, PCLOB is open for business.

Monday's hearing saw testimony from legal officials from the Department of Justice, the National Security Agency, the Office of the Director of National Intelligence, and the FBI. The government officials largely argued for the continuation of their programs as is. In particular, there was forceful defense of Section 215 of the Patriot Act, which allows for the bulk telecom metadata handover to the government.

"If we did not have this program and used other lawful investigative ways to obtain particular phone numbers from particular subjects, we wouldn't be able to see the patterns that the NSA program provides us," said Patrick Kelley, the acting general counsel of the FBI.

"We would be able to, for example, through the use of a grand jury subpoena or a national security letter on the national security side, obtain information about a particular phone number and we'd get the first tier of the phone numbers that that number had connected with, but we would not be able to go into a second tier or a third tier—"hops," it's commonly called—which the NSA program provides.

"Additionally, we would be able to perhaps go to service provider to service provider... and then individually try to connect those dots, but without the ability to look at all the data in a composite way, it would be much harder. It would be much slower, much more difficult for us to do that.

"So with those two indicators there, we'd be less agile, we'd be less informed, and we'd be less focused, and we think that as a result we'd be a lot less effective in preventing the attacks that the American people want us to prevent."

Dueling groups

In the wake of the Snowden revelations, President Barack Obama has also convened a second group with similar goals: the Review Group on Intelligence and Communications Technologies. As we’ve reported previously, the Review Group’s members have been criticized by outside civil libertarians and lawyers for being too close to the White House and the intelligence community. By contrast, all five members of PCLOB are lawyers.

But Medine told Ars that PCLOB will have far more independence than the Review Group, which reports to the White House and to intelligence authorities.

“We report to Congress and the president; there’s no clearance process,” he said. “Once [the board] reaches a decision, it just releases the decision rather than going through the White House, the Office of Management and Budget, or the Office of the Director of National Intelligence review process. That’s where the independence lies: there’s no prior review of our work.”

And most importantly, Medine added, PCLOB is a permanent institution, while the president’s review board will disband by the end of the year.

“We let them use part of our office space—they’re very easy to find,” he said. “We have met with them. It’s not hard for us to interact. Their mission is different than ours. They have a mandate from the president, which has a broad scope and it covers the surveillance of heads of state, which people are anxiously awaiting. There’s some overlap. They are a temporary organization, but they will be out of business once they submit their report, which should be in mid-December.”

Both groups are expected to release a report by the end of the year—PCLOB’s first report (PDF) came out in June 2013, without enough lead time to take the Snowden leaks into account. That report had little of substance and mostly described the group’s background and its setup phase. PCLOB is required to issue such reports to Congress at least twice per year.

“We’ve had a sense of urgency since I started,” Medine added. “I started work four days before the Snowden leak. We were almost immediately asked to investigate the two NSA programs.”

“We’ve had complete cooperation from the administration”

So what does PCLOB actually do to fulfill its mandate? It says that it asks questions of government officials and requires that government documents are produced for its review. It can request that the attorney general subpoena a government agency (the Executive Branch is given a wide exemption), but Medine has said that they haven’t needed to do that just yet.

“We’ve had complete cooperation from the administration to date, gotten all information, whether classified or not,” he said. “We do have some language in our statute (PDF) about requiring people to appear. The other side is that we do have the authority to seek subpoenas for private sector information but have not felt the need to do [so].”

However, the PCLOB does not disclose who it speaks with in the government, and those conversations are not official sworn testimony. The conversations are not recorded or transcribed, and the PCLOB does not plan on quoting anyone by name in its future reports.

“We’ve gone out to the agencies to meet in their offices and we’ve had agencies come to our offices,” Medine said. “We don’t have the authority to make people swear an oath.”

But it does have the authority to request and receive classified material—putting the PCLOB in an unenviable conundrum.

“I think it’s important to recognize that we have the benefit and challenge of dealing with classified information,” he added. “We can’t release classified information, but nonetheless we benefit in forming our conclusions. Ultimately, we will issue a public report so the public can learn what we will learn, but it’s likely that we will issue a classified appendix. We will also urge that declassification of some issues or documents that are important in our final report.”

As is often the case with classified information, it no doubt sheds light on material that those of us in the general citizenry don’t have access to. Medine said that this expanded knowledge is helpful, but it doesn’t necessarily help the general public’s ability to trust secret government programs.

“As I’ve learned more about the operations, particularly matters that are classified, I have to evaluate what I’ve learned in that light,” he said. “A lot of the press accounts have been inaccurate in their scope and operation, but one advantage that we have is that we don’t have to rely on potentially mistaken accounts.”

“They don’t have the authority to make changes.”

While all of that sounds good, PCLOB’s existence seems to raise more questions than answers. First off, what if its conclusions and the president’s Review Group were to come to different conclusions about whether the government has overreached in its surveillance? Which group’s conclusion would take precedence?

Worse still, if members of Congress can barely get straight answers from government officials, how can yet another government panel do so?

“We know that when even Congress speaks to the NSA, they’re forced to play something of a guessing game,” Brian Pascal, a legal fellow at the University of California, Hastings Privacy and Technology Project, said in an e-mail to Ars.

“How much worse must it be for PCLOB? There’s no such thing as ‘Contempt of Privacy and Civil Liberties Oversight Board.’ And for the public, it’s not transparency if you have to guess at the existence of a thing.”

Plus, if PCLOB suggested broad changes to the government’s surveillance programs, what are the chances that they would actually be implemented? After all, there’s one ultimate problem with PCLOB: it has no actual power to change American policy, nor does it have the authority to sanction government officials who do not comply.

“That’s the downside of being an independent body. They don’t have the authority to make changes—they will have to rely on their power of persuasion,” Michelle Richardson, an American Civil Liberties Union attorney, told Ars.

Many of the outside-the-Beltway civil liberties community seem to be taking a wait-and-see approach so far before making a judgement.

"I think there are a number of pretty obvious problems with this effort—lack of true transparency, independence, and accountability being the most obvious," Clark Asay, a law professor at Penn State University, told Ars. "But it at least reflects—even if imperfectly—an effort to address privacy and civil liberty concerns. Hopefully the board was responsive and sensitive to recent events and the growing public concern with privacy. We’ll see with the report."

31 Reader Comments

"we would be able to perhaps go to service provider to service provider... and then individually try to connect those dots, but without the ability to look at all the data in a composite way, it would be much harder. It would be much slower, much more difficult for us to do that."

As my old grandma used to tell me, anything that makes the cops job easier makes life for citizens worse.

Oh, is your job hard? Gee, my heart is bleeding. So is mine but you don't see me actively destroying society in order to make it easier.

We CAN make the cops job very easy: Just make everyone stay in their cell in the panopticon and things will be VERY easy for the cops. Do we want to make it that easy?

“I think it’s important to recognize that we have the benefit and challenge of dealing with classified information,” he added. “We can’t release classified information, but nonetheless we benefit in forming our conclusions. Ultimately, we will issue a public report so the public can learn what we will learn, but it’s likely that we will issue a classified appendix. We will also urge that declassification of some issues or documents that are important in our final report.”

See, this is what makes me think this is all smoke and mirrors and PR nonsense.

Let's say they look at some classified information and find that a major breach of liberties has occured. How on earth are they even able to create a public report on that? Let's say this panel had seen the documentation for MUSCULAR. They can't say that the NSA has access to and has figured out how to reverse-engineer Yahoo and Google's internal traffic because that's in a classified document. They can't divulge Yahoo and Google's names because that's also classified. All they could really say is "a breach of privacy is occurring".

I suppose if this panel is operating in a yes/no capacity (yes, civil liberties are still being violated, no they are not) then it makes sense, but that's not very helpful. Unless this group exists for the sole purpose of saying "We think this document should be declassified because we would like to report it to the people", (which the article does state they could do) I can't see how they'd be able to give us any information at all. The classified information is still classified and reviewed by the same people. This group asking nicely to declassify documents is not going to make government agencies suddenly okay with airing their dirty laundry.

This PCLOB sounds completely useless and non-effectual. What exactly have they accomplished in the last 6 years that has been important or insightful to the public at large? Sounds more like a bureaucratic lip service group that anything of consequence. I think Snowden has pretty much been doing their so called job for them.

So with those two indicators there, we'd be less agile, we'd be less informed, and we'd be less focused, and we think that as a result we'd be a lot less effective in preventing the attacks that the American people want us to prevent.

How about if US.gov simply stops ASSISTING the attackers? Tsarnaevs and Mohamed Atta were US Intelligence CLIENTS.

“We’ve had a sense of urgency since I started,” Medine added. “I started work four days before the Snowden leak. We were almost immediately asked to investigate the two NSA programs.”

Do we know who asked them to perform this investigation? I mean, it would have been pretty damning if the PCLOB had ignored the leaks when the story broke, and I'd like to believe that they would have investigated without being asked. But it would still be interesting to know who actually made the request.

From the mandate: "ensuring the need for such actions is balanced with the need to protect privacy and civil liberties." Wrong. And directly against what Obama promised for years. Bush stated we needed to trade some freedom for safety. Obama correctly promised no compromise was necessary and as our freedom is insured our safety is insured. Obama was correct. As the civil liberties of a country rise and stay maintained the safety of that country rises.

Now, with the mandate of this Oversight Board exactly wrong, we can expect exactly the wrong results. Sickening.

The US needs some serious right-to-privacy reform because toothless organizations like the PCLOB will accomplish almost nothing relying on "their power of persuasion." Force of law is a necessity here.

"If we did not have this program and used other lawful investigative ways to obtain particular phone numbers from particular subjects, we wouldn't be able to see the patterns that the NSA program provides us," said Patrick Kelley, the acting general counsel of the FBI.

Kelly went on to say, "And you know as well as I do that our founding fathers, above all else, wanted to ensure that it was easy for law enforcement to do its job. Or at least, that's what they'd say if they had to fight a war against a metaphysical concept."

"we would be able to perhaps go to service provider to service provider... and then individually try to connect those dots, but without the ability to look at all the data in a composite way, it would be much harder. It would be much slower, much more difficult for us to do that."

As my old grandma used to tell me, anything that makes the cops job easier makes life for citizens worse.

Oh, is your job hard? Gee, my heart is bleeding. So is mine but you don't see me actively destroying society in order to make it easier.

We CAN make the cops job very easy: Just make everyone stay in their cell in the panopticon and things will be VERY easy for the cops. Do we want to make it that easy?

“I think it’s important to recognize that we have the benefit and challenge of dealing with classified information,” he added. “We can’t release classified information, but nonetheless we benefit in forming our conclusions. Ultimately, we will issue a public report so the public can learn what we will learn, but it’s likely that we will issue a classified appendix. We will also urge that declassification of some issues or documents that are important in our final report.”

See, this is what makes me think this is all smoke and mirrors and PR nonsense.

Let's say they look at some classified information and find that a major breach of liberties has occured. How on earth are they even able to create a public report on that? Let's say this panel had seen the documentation for MUSCULAR. They can't say that the NSA has access to and has figured out how to reverse-engineer Yahoo and Google's internal traffic because that's in a classified document. They can't divulge Yahoo and Google's names because that's also classified. All they could really say is "a breach of privacy is occurring".

I suppose if this panel is operating in a yes/no capacity (yes, civil liberties are still being violated, no they are not) then it makes sense, but that's not very helpful. Unless this group exists for the sole purpose of saying "We think this document should be declassified because we would like to report it to the people", (which the article does state they could do) I can't see how they'd be able to give us any information at all. The classified information is still classified and reviewed by the same people. This group asking nicely to declassify documents is not going to make government agencies suddenly okay with airing their dirty laundry.

They can write summaries of their findings/opinions without revealing factual classified details. For example, they could say that Google's internal traffic has had surveillance on it, but not give details as to where, how, the software involved, etc.

"we would be able to perhaps go to service provider to service provider... and then individually try to connect those dots, but without the ability to look at all the data in a composite way, it would be much harder. It would be much slower, much more difficult for us to do that."

As my old grandma used to tell me, anything that makes the cops job easier makes life for citizens worse.

Oh, is your job hard? Gee, my heart is bleeding. So is mine but you don't see me actively destroying society in order to make it easier.

We CAN make the cops job very easy: Just make everyone stay in their cell in the panopticon and things will be VERY easy for the cops. Do we want to make it that easy?

“A lot of the press accounts have been inaccurate in their scope and operation, but one advantage that we have is that we don’t have to rely on potentially mistaken accounts.”

Like the government has given me a reason to put my faith that I'll get a straight answer out of this mess. There probably are some inaccurate or overblown reporting in the press, however I'm more likely to put more stock in what they say than the government. It seems you only have to wait a few hours or a day for proof to be released by the press countering what the government tries to deny or claim. I'm just waiting for the next revelation from the Snowden Files.

If we were working with countries and not against them, we would need all this secrecy, nor would we need government sponsored watchdog groups to create an illusion that something is being done about it.

There was a a time when president Kennedy was alive when that happened. Now its a world of fear, controlled by paranoid schizophrenics in the military industrial complex.

“We know that when even Congress speaks to the NSA, they’re forced to play something of a guessing game,” Brian Pascal, a legal fellow at the University of California, Hastings Privacy and Technology Project, said in an e-mail to Ars.

Can't Congress hold these people in Contempt of Congress for deliberately obstructing their investigation?

“As I’ve learned more about the operations, particularly matters that are classified, I have to evaluate what I’ve learned in that light,” he said. “A lot of the press accounts have been inaccurate in their scope and operation, but one advantage that we have is that we don’t have to rely on potentially mistaken accounts.”

I don't understand how the information they receive would be any more reliable given the fact it is not under oath and they have no real recourse if they are lied to.

And given the fact intelligence have recently lied under oath to the US Congress with no apparent repercussions, why would anyone suppose the information they get will be less erroneous and more reliable?

It's quite clear the leaders of the intelligence community will say whatever they think will serve their interests best.

“We know that when even Congress speaks to the NSA, they’re forced to play something of a guessing game,” Brian Pascal, a legal fellow at the University of California, Hastings Privacy and Technology Project, said in an e-mail to Ars.

Can't Congress hold these people in Contempt of Congress for deliberately obstructing their investigation?

Not a matter of can, but if they have the will. So far Congress shows little inclination to take actions within their power even when they are lied to.

If they won't hold liars in contempt, is it any wonders they are treated so contemptuously by intel officials?

In corporations if you want to waste time you have a meeting. In government, you form a committee first, then you have a meeting. The process of wasting time is more complex for the government. But they have the additional burden of justifying their salaries.

Who watches the watchmen? Apparently this bunch. And they can find out anything about those watchmen - that the watchmen want to tell them. The watchmen on the other hand know every private detail of the lives of the watchers? And of the people who employ the watchers?

So with those two indicators there, we'd be less agile, we'd be less informed, and we'd be less focused, and we think that as a result we'd be a lot less effective in preventing the attacks that the American people want us to prevent.

How about if US.gov simply stops ASSISTING the attackers? Tsarnaevs and Mohamed Atta were US Intelligence CLIENTS.

DUH!

If, by this comment, you mean that the .gov stops provoking attacks by pulling its nose out of foreign affairs it has no business in and cleans up its own house instead of engaging in massive hypocrisy and inhumane actions, then I totally agree.

So with those two indicators there, we'd be less agile, we'd be less informed, and we'd be less focused, and we think that as a result we'd be a lot less effective in preventing the attacks that the American people want us to prevent.

How about if US.gov simply stops ASSISTING the attackers? Tsarnaevs and Mohamed Atta were US Intelligence CLIENTS.

DUH!

If, by this comment, you mean that the .gov stops provoking attacks by pulling its nose out of foreign affairs it has no business in and cleans up its own house instead of engaging in massive hypocrisy and inhumane actions, then I totally agree.

If not, then I have no idea what you're even talking about.

Well, yes, murder, destruction and general oppression set the stage. But, the Tsarnaevs were FBI clients. They murdered 3 people in Waltham, MA and the family of one of the murdered young men didn't understand why the investigation ignored the obvious suspects. Because the FBI wanted it that way. Is it a leap of logic to assume that the FBI had some ultimate purpose in keeping the Tsarnaev's free? Is it another leap that this purpose was consummated in the Boston bombing?

Listen to Susan Lindauer's talk and tell me if you think she is crazy. US.gov had to cover eyes and ears AND blow a whole lot of smoke not to see the 911 attack coming. "Mohamed Atta was a clown. He was a CIA client. None of the hi-jackers were jihadists." (paraphrase)

This all reminds me of Chomsky's observation regarding a typical US overseas involvement:"There was no need to threaten bombing or even sanctions. It would have sufficed for the US and its allies to withdraw their active participation..."

Only Congress has the power to compel the NSA and the Obama administration to honor the Constitution. The USA Freedom Act sponsored by Sensenbrenner is endorsed by the ACLU and Ron Wyden and is a good first step, all the other panels are just a dog and pony show, they're going nowhere.

@warningofdanger: your "uncle Sam", has a long history of abuse of power, abusing the rights of the people, they do what ever they want, with total disregard for the laws THEY write. I have been fighting them for more than 15 years on serial rape / priest sex abuse of children, felony rape is against the law, try making them enforce that one....they are letting corporations rape women as a "revenue source", far worse, they are letting priests rape kids, just to soak the tax exempt deep pockets of the Archdiocese..how sick is that?? Father Brennan, Philadelphia is one example, one of his victims was just found dead.....(guess which one I would "find dead" , if I were your Uncle Sam.) They stalk victims with this "surveillance" calling that "an investigation"....

And I doubt that we've even discovered the worst abuses yet as there is some chance, if Russ Tice is right, that before Snowden's time, the NSA was also spying on Supreme Court judges, congresspersons, various generals and even Obama (before he became President. This massive spying on other branches of the US government, if it occurred and we don't yet have that confirmed via documents, would go even past violating the 4th and 1st Amendments as it would totally undermine the entire constitutional framework.) The PCLOB should look into Russ Tice's disclosures: http://youtu.be/d6m1XbWOfVk

So with those two indicators there, we'd be less agile, we'd be less informed, and we'd be less focused, and we think that as a result we'd be a lot less effective in preventing the attacks that the American people want us to prevent.

How about if US.gov simply stops ASSISTING the attackers? Tsarnaevs and Mohamed Atta were US Intelligence CLIENTS.

DUH!

If, by this comment, you mean that the .gov stops provoking attacks by pulling its nose out of foreign affairs it has no business in and cleans up its own house instead of engaging in massive hypocrisy and inhumane actions, then I totally agree.

If not, then I have no idea what you're even talking about.

I left out an obvious and important additional bit of evidence of government collusion in domestic terrorist attacks: Sibel Edmonds, who today is well known to anyone who has googled their suspicions once or twice, and now produces the Boilingfrogspost.

_____________________________________________Edmonds was hired, as a contractor, to work as an interpreter in the translations unit of the FBI on September 20, 2001. Among her main roles was to translate covertly recorded conversations by Turkish diplomatic and political targets.[9]According to Edmonds, she began facing problems when she reported to FBI managers various incidents that she considered misconduct and incompetence involving her supervisor Mike Feghali and others that she says she observed while employed as a translator between December 2001 and March 2002.On 1 February 2011, Edmonds published a story on her own website, adding details of events she described as taking place in April 2001. The account centered around her post-9/11 role as translator of a pre-9/11 interview during which an informant had told the FBI agents:Bin Laden’s group is planning a massive terrorist attack in the United States. The order has been issued. They are targeting major cities, big metropolitan cities; they think four or five cities; New York City, Chicago, Washington DC, and San Francisco; possibly Los Angeles or Las Vegas. They will use airplanes to carry out the attacks. They said that some of the individuals involved in carrying this out are already in the United States. They are here in the U.S.; living among us, and I believe some in US government already know about all of this.The agents, along with Edmonds, reported this information internally at the FBI but, according to Edmonds, no one at the bureau ever asked for follow-ups or further information prior to 9/11.[10]Edmonds would escalate her complaints to the FBI's Office of Professional Responsibility and the United States Department of Justice Office of the Inspector General. In response, she claims that managers retaliated[11] against her, and she was finally fired on March 22, 2002. In June 2002, the Associated Press and Washington Post reported, upon investigation, that Edmonds was dismissed because her actions were disruptive and breached security and that she performed poorly at her job.[12] A later internal investigation by the FBI found that many of Edmonds's allegations of misconduct "had some basis in fact" and that "her allegations were at least a contributing factor in the FBI’s decision to terminate her services," but were unable to substantiate all of her allegations, nor did they make a statement regarding her dismissal being improper.[13]Edmonds's allegations of impropriety at the FBI later came to the attention of the Senate Judiciary Committee, which held unclassified hearings on the matter on June 17, 2002, and July 9, 2002. During the hearings, the FBI provided various unclassified documents and statements relating to the case, which led to Senators Patrick Leahy and Chuck Grassley sending letters, dated June 19, 2002, August 13, 2002, and October 28, 2002 – to Inspector General Glenn A. Fine, Attorney General Ashcroft, and FBI Director Robert Mueller, respectively – asking for explanations and calling for an independent audit of the FBI's translation unit. These documents were published on the Senators' web sites.[14][15][16][16]On August 15, 2002, a separate suit, Burnett v. Al Baraka Investment & Dev. Corp., was filed by families of 600 victims of the September 11, 2001 (9/11) attacks against Saudi banks, charity organizations, and companies.[17][18][19] Although the claims were eventually dismissed,[20] Edmonds planned to file a deposition in this case.[21] On May 13, 2004, Ashcroft submitted statements to justify the use of the State secrets privilege against the planned deposition by Edmonds,[21] and the same day, the FBI retroactively classified as Top Secret all of the material and statements that had been provided to the Senate Judiciary Committee in 2002 relating to Edmonds's own lawsuit, as well as the letters that had been sent by the Senators and republished by the Project on Government Oversight.[22] On June 23, 2004, the retroactive reclassification was challenged in a suit filed by the Project on Government Oversight, citing fear that the group might be retroactively punished for having published the letters on its website. The Justice Department tried to get the suit dismissed, and the Justice Department explicitly approved their release to the Project on Government Oversight.[23] The reclassification did, however, keep Edmonds from testifying in the class action suit[24] as well as her own whistleblower suit.[25][26] The latter decision was appealed, and Inspector General Glenn A. Fine released a summary of the audit report, claiming “that many of her allegations were supported, that the FBI did not take them seriously enough, and that her allegations were, in fact, the most significant factor in the FBI's decision to terminate her services. Rather than investigate Edmonds's allegations vigorously and thoroughly, the FBI concluded that she was a disruption and terminated her contract.”[27]_______________________________________This and more about Sibel at:http://en.wikipedia.org/wiki/Sibel_Edmonds